The Supreme Court in Three Articles and Two Dimensions
During the pandemic, I was doubly fortunate. No one in my immediate or extended family contracted COVID. I am forever thankful. And because my children are grown, I had the opportunity do some writing. I published two major articles, each of which extends a theme central to an earlier, 2017 article. Although each article is independent, they also form a larger project. Together these three articles demonstrate the importance of recognizing that across salient domains, the Supreme Court operates along two dimensions.
By dimension, I mean a spectrum along which any sort of data may be ranked and compared. Sometimes a single dimension captures vast, even infinite, data. When commentators describe a Supreme Court Justice as liberal or conservative, they convey that the Justice embraces views over a wide range of disputed doctrines. Liberal to conservative—one dimension—captures innumerable data. By contrast, a minuscule number of data sometimes forces two dimensions. This sequence of transit vehicles—bike, car, and bus—captures both size and weight from left to right: small to large and light to heavy. Adding an aloft hot air balloon—larger than a car, smaller than a bus, and lighter than air—requires separately accounting for these two dimensions: size (bike, car, aloft hot air balloon, bus) and weight (aloft hot air balloon, bike, car, bus). Recognizing dimensionality in Supreme Court decision making holds profound implications. These articles each expound upon different aspects of this theme. Because each article, linked below, has its own abstract, here I will provide just a few brief comments.
The Supreme Court’s tiers of scrutiny doctrines carry broad implications for nearly every aspect of equal protection and due process jurisprudence. Legal scholars and jurists find the doctrines confounding. The Court nominally applies rationality review deferentially and strict scrutiny incisively. And yet the Court strikes some challenged laws under a rationality test and sustains others under strict scrutiny. This article explains that such anomalous outcomes arise from the Supreme Court’s unwillingness to recognize that in modern jurisprudence, equal protection and race implicate two analytical dimensions, anti-discrimination and anti-subordination, whereas equal protection and gender generally implicate one, anti-subordination. The article relates this insight to several tiers of scrutiny doctrines and applications. The article also offers guidance in reconciling outcomes based upon a simpler and more straightforward system of tiers that accounts for dimensionality.
Salient constitutional doctrines are routinely plagued with inconsistency. Inconsistent applications pervade such doctrines as standing, the commerce clause, separation of powers, equal protection and race, and the First Amendment—incitement and obscenity. This article identifies a dynamic called “Dual Persistent Conflicting Premises” as the cause of this pervasive doctrinal phenomenon. In salient domains, this feature is a consequence of a strategy among doctrinally ambitious Supreme Court Justices. Justices confronting problematic precedents that impede preferred doctrinal results will seek to redefine the premise on which the earlier cases rest both to facilitate the desired case outcome and to appeal to one or more of the Court’s median Justices. By definition, a median Justice is generally disinclined to upset major constitutional doctrines. To capture a median Justice, those pushing for doctrinal change will seek to reconcile the new case result with the precedents posing a doctrinal obstacle. This strategy requires reformulating the premise on which earlier cases rest to allow the desired doctrinal result. In later cases, the original and revised premise inevitably come into conflict, exposing two dimensions underlying the developing body of caselaw. The emerging pattern of dual persistent conflicting premises generates the observed pattern of doctrinal inconsistencies that routinely characterize salient constitutional law domains.
When the Supreme Court resolves a case and no opinion captures a majority, lower courts are instructed to apply the narrowest grounds rule. Announced in Marks v. United States (1977), the rule generally implies that the opinion consistent with the judgment that carries a lesser legal impact expresses the holding. Lower courts and legal scholars have expressed confusion as to the rule’s scope and application. Individual Justices have sewn confusion based on doctrinal clarifications that are in tension with how they model their conduct in the doctrine’s shadow. This article clarifies Marks, reconciling doctrine with judicial behaviors. This following insight is essential in applying the narrowest grounds rule: When opinions in a non-majority case can be expressed along a single relevant dimension, there is always a narrowest grounds opinion; when opinions in such cases implicate two relevant dimensions, there is never a narrowest grounds opinion. Supported with a broad theoretical framing and ample illustrations, this article clarifies the rule and offers guidance as to how to apply it. Although Marks formally applies only to Supreme Court cases, several state judiciaries have applied the doctrine to non-majority opinions issued by their own highest courts. The article also provides the first comprehensive set of relevant state data. The George Washington Law Review kindly selected this article for its Individual Marketing Plan, an honor it bestows upon one article per year.
I hope you enjoy each of these articles or these brief descriptions. I welcome any comments you have. Most importantly, I hope you and your loved ones are safe and well.